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REPORTS ARCHIVE FOR THE YEAR 2000
The following is the complete collection of InternationalLawHelp.com REPORTS for the year 2000. Please note REPORTS began in June 2000, therefore, there are none before that date.
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U.S. Signs I.C.C. Statute Although Senate Ratification is Doubtful
In a surprise move in the last weeks of his presidency, Bill Clinton decided to sign the Rome Statute of the International Criminal Court (I.C.C.) -- a standing tribunal that will prosecute violators of war crimes, crimes against humanity, genocide and aggression. This action met the Dec. 31, 2000 deadline for signature set by the Statute. U.S. participation in the I.C.C. was a source of disagreement within the Clinton White House and has been strenuously opposed by the military establishment. Some fear that U.S. servicemen and servicewomen may be the targets of politically motivated prosecutions. The I.C.C. does not currently contain all of the safeguards that the U.S. sought to address those concerns such as a requirement that the U.N. Security Council approve all cases. The Congress, and quite likely, the incoming Bush administration will oppose further U.S. support for Court and President-Elect Bush may not send it to the Senate for Ratification. Alternatively, he may send it to the Senate, but expressing his will that it be defeated. Nevertheless, the U.S. signature allows the U.S. to participate in further negotiations in the development of the Court. The Statute will enter into force and create the Court when 60 states have ratified. Also meeting the December 31, 2000 deadline, along with the United States, were Israel and Iran. Click Here for the website of the Rome Statute of the I.C.C.
U.N. Agrees to New Dues Assessment Decreasing U.S. Obligation
On December 22, the United Nations General Assembly's Budget Committee agreed in principle to change the way dues are assessed to U.N. member states for both the general budget and peacekeeping operations. The United States, especially the U.S. Congress, has long sought such a revision that would allow for a reduction of U.S. dues. The U.S. is currently assessed 25 percent of of the regular budget and 30 percent of the peacekeeping budget. The newly agreed dues assessment would reduce the U.S. share to 22 percent and 27 percent respectively. Since 1994, when the Republican Congress was elected, the lopsided dues structure became a source of friction between the U.N. and the Congress. Chairman of the Senate Foreign Relations Committee, Senator Jesse Helms (Republican of North Carolina), was a particularly outspoken critic of the U.S. role in the U.N. and a major voice for this type of reform. He has blocked U.S. payments to the organization and since 1994 the U.S. debt of back dues grew to over 1.5 billion dollars. In the last two years, U.S. Ambassador to the U.N., Richard C. Holbrooke, worked to secure reductions in U.S. contributions, arguing that the debt assessment system of the U.N. reflected post-World War II disparities in global economic strength that no longer exist today. Specifically, the U.S. has been paying a larger share of the U.N. budget because European powers needed to rebuild from the devastation of W.W. II; today the European Union is an economic power. In addition, in the early days of the U.N. there were only 55 members while today there are 189. Although details still remain to establish the new structure, members of Congress, including Senator Helms, reacted positively to the development and praised the efforts of Ambassador Holbrooke.
Chilean Supreme Court Rules Pinochet Must be Interrogated But Case May Proceed Against Him
On December 20, the Chilean Supreme Court affirmed a lower appellate ruling that held former dictator Gen. Augusto Pinochet must be interrogated so that he may be re-arrested and charged again for crimes allegedly committed during his 17 year rule of Chile. The lower court ruling determined that it was error for Pinochet to be held for house arrest without first obtaining his deposition. Pinochet faces 190 criminal complaints that accuse him of ordering the death or disappearance of more than 3,000 people and participating in the torture of many more. Pinochet, 85 years old, suffers from health problems, such as small strokes experienced in recent years, that may prevent his case from coming to trial. Gen. Pinochet became dictator when he overthrew Socialist President Salvador Allende in 1973. Pinochet stepped down in 1990 and was arrested in 1998 in the United Kingdom pursuant to a Spanish Judge's arrest warrant for torture, kidnapping and murder during his rule. That action raised profound and novel questions in international law concerning former head-of-state immunity, diplomatic immunity and universal jurisdiction. The United Kingdom ultimately decided not to prosecute him because of his poor health. Upon his return to Chile, the Chilean courts decided to proceed with a prosecution.
ICJ Rejects Belgium's Request for Provisional Measures in Congo Case
On December 8, the International Court of Justice (ICJ) rejected Belgium's request that the case: "Arrest Warrant of 11 April, 2000 (Democratic Republic of Congo (DRC) v. Belgium)" be removed from consideration. The Court likewise decided that provisional measures requested by Belgium, should not issue in the case. On April 11, 2000 a Belgian investigating judge issued an arrest warrant against Minister Yerodia Abdoulaye Ndombasi, a former Minister of Foreign Affairs for Congo who is now Minister of Education. The arrest warrant alleged Mr. Ndombasi's "serious violations of international humanitarian law" and sought his provisional arrest pending a request for extradition to Belgium. Belgium's request that the case be removed from the Court's consideration arises from Mr. Ndombasi's change of position within the Congolese government. The Court rejected this argument holding that "to date... the arrest warrant has not been withdrawn and still relates to the same individual, notwithstanding the new ministerial duties that he is performing." Congo's request for provisional measures was for an order to Belgium to discharge the arrest warrant. The request was denied due to Congo's failure to demonstrate irreparable harm to its interests pending a decision on the merits or an otherwise peaceful resolution of the case. Click here for the Press Release of the Court's action on the ICJ website.
ICJ Concludes Proceedings and Considers Final Judgment in LaGrand Case (Germany v. United States)
On November 17, the International Court of Justice (ICJ) concluded 5 days of public hearings in the LaGrand Case (Germany v. United States). Deliberations on the final judgment are underway. The LaGrand Case arises from circumstances in the criminal justice system of the State of Arizona (USA). Two German nationals, Walter and Karl LaGrand were tried and convicted of homicide and sentenced to death despite the failure of US officials to advise them of their right to contact German consular officials pursuant to Article 36 of the Vienna Convention on Consular Relations. In February 1999, Arizona executed Karl LaGrand and Germany immediately sought provisional measures under Article 41 of the ICJ Statute to prevent the execution of Walter LaGrand pending a final judgment. Although such provisional orders were granted, Walter LaGrand was executed as well in March 1999. The United States courts held that the doctrine of "procedural default" prevented the Vienna Convention issue from being raised collaterally in a federal habeas corpus proceeding. In the proceeding before the ICJ, Germany is requesting a declaration that: 1) the United States violated its obligations under the Vienna Convention on Consular Relations by failing to notify the LaGrand brothers of their rights under the Vienna Convention; and that, 2) the U.S. application of the doctrine of "procedural default" to bar the Vienna Convention issue was itself also a violation of international law; and 3) the U.S. failure to abide by the Order of Provisional measures was likewise a violation of obligation under the UN Charter. Germany is ultimately seeking assurances that such violations will not occur again. The United States admits the violation of international law but claims that no further relief is warranted. Click here for the link to the Press Communiques in the LaGrand Case via the ICJ website. SPONSOR'S NOTE: For a review of the international and domestic legal issues presented by alleged violations of Article 36 of the Vienna Convention on Consular Relations see, Howard S. Schiffman, Breard and Beyond: Consular Notification and Access Under the Vienna Convention, Cardozo Journal of International and Comparative Law, Vol. 8, No. 1, pp. 27-60 (2000).
Federal Republic of Yugoslavia Admitted to U.N.
The Federal Republic of Yugoslavia was formally admitted as a member of the United Nations on November 1. Another recent member, Tuvalu was admitted as the 189th member on September 5, 2000. The case of the Federal Republic of Yugoslavia is of particular interest in that it claimed, but was denied, the old seat of the former Socialist Federal Republic of Yugoslavia. The U.N. proclaimed in 1992 that the Federal Republic of Yugoslavia, consisting only of the republics of Serbia and Montenegro, was not a successor state after the breakup of the former Yugoslavia. The U.N. demanded that the Federal Republic of Yugoslavia apply for admission as a new state. Former President of Yugoslavia, Slobodan Milosevic, refused to apply for new admission, however, the new president Vojislav Kostunica, formally requested the admission a month after he ousted Milosevic from office by election. The other former Yugoslav republics of Bosnia and Herzegovina, Croatia, Slovenia and Macedonia were all admitted earlier and co-sponsored this General Assembly resolution for new admission.
France May Prosecute Qaddafi for Terrorism
A French court ruled that Libyan leader Col. Muammar el-Qaddafi could be prosecuted in France for complicity in the bombing of a French Airliner over Niger in 1989 in which 170 people died. In so ruling, the court rejected arguments that Col. Qaddafi was immune from prosecution as a head of state. The nature of the crime, "complicity in murder in relation to a terrorist act," and France's particular connection to the matter weighed heavily in the court's ruling. The French decision to not recognize the customary immunity of a head of state is noteworthy but is similar to the decision of other national courts which enabled prosecutions against other heads of state, albeit when they were no longer in office. The U.S. action against Philippine President Ferdinand Marcos and the Spanish attempt to try former Chilean dictator Augusto Pinochet are visible examples. The concept of immunity for a former head of state is not as well established in international law as it is for a serving head of state. On the other hand, even for a serving head of state, vexing questions have long been raised about the propriety of immunity in the cases of the most serious violations of international law.
Sierra Leone War Crimes Tribunal Blueprint Prepared and Envisions Juveniles Separately
A blueprint for the ad hoc war crimes tribunal for Sierra Leone, resolved to be created by the United Nations Security Council in August 2000 (See August 2000 Reports) was prepared by Secretary General Kofi Annan and delivered to the Security Council on October 5. The plan envisions the tribunal having jurisdiction over juveniles ages 15-18 but they will be tried in a separate chamber from adult defendants. According to Secretary General Annan's plan, the juveniles, if convicted, would not be sentenced to incarceration but rather to community service and other forms of rehabilitation. The provision for juveniles is important given the wide-spread participation of youngsters in the recent civil war. The blueprint also provides for a chief prosecutor appointed by the secretary general and a deputy prosecutor appointed by the state of Sierra Leone in consultation with the U.N. The new court will have jurisdiction over murder, torture, terrorism, rape, sexual slavery, mutilation, hostage-taking, pillage and attacks on civilians occurring in the context of the conflict. Sierra Leone will have authority in the tribunal, along with the U.N., at least more authority than is envisioned for Cambodia in the proposed Cambodia tribunal. The Secretary General's blueprint is subject to approval by the Security Council.
US Sanctions Japan for Expansion of Experimental Whaling Program
On September 13, 2000 President Clinton directed that Japanese fishing fleets be denied future access to U.S. waters after Japan's recent decision to expand its so-called "scientific whaling program" to include not only minke whales but also the more heavily protected sperm and Bryde's whales. The President's authority to sanction Japan derives from the Pelly Amendment to the Fisherman's Protective Act of 1967 in which Congress empowered the President, upon certification of the Secretary of Commerce, to prohibit the importation of products from countries that allow fishing operations or engage in trade that diminish the effectiveness of an international fishery conservation program for threatened or endangered species. The Japanese claim that such whale deaths are necessary to collect data on whale populations and the health of the stocks. The Japanese decision to expand its "scientific whaling program" is technically permitted by the International Convention for the Regulation of Whaling (ICRW) (The full text of the ICRW can be found on our Documents Page) but is categorically rejected by the International Whaling Commission (IWC) and its Scientific Committee. The Japanese program is roundly rejected for its use of lethal methods to collect data, especially where non-lethal means are available. The Japanese lethal scientific research is regarded as particularly disingenuous because the meat of the whales captured as part of the program is sold commercially in Japan. Click here for the link to the President's Statement and other related documents and information on the NOAA website.
UN Holds Historic "Millennium Summit"
UNCLOS Arbitration Panel Finds No Jurisdiction in the Southern Bluefin Tuna Case
On August 4, 2000 an arbitral panel constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to hear the Southern Bluefin Tuna (SBT) dispute between Australia and New Zealand on the one hand, and Japan on the other, ruled that it did not have jurisdiction to hear the matter. The proceedings were initiated by Australia and New Zealand against Japan because of the Japanese unilateral experimental fishing program for Southern Bluefin Tuna which Australia and New Zealand maintained was in violation of the provisions of the Convention for the Conservation of Southern Bluefin Tuna (CCSBT) and more general provisions of UNCLOS. The CCSBT is a regional fishery agreement between Australia, Japan and New Zealand. Among the detailed and often complex reasons for its denial of jurisdiction the Tribunal cited the primacy of the CCSBT over UNCLOS in the facts of this particular dispute. The comprehensive UNCLOS treaty addresses almost all aspects of the law of the sea and includes binding, yet flexible, dispute settlement provisions (Part XV) for disputes arising under the treaty. It also contains broad, yet meaningful, mandates to conserve natural resources such as fisheries. This arbitral tribunal was the very first established under Part XV since UNCLOS entered into force in 1994. The SBT dispute is also noteworthy in that Australia and New Zealand sought, and were granted, provisional measures against Japan by the International Tribunal for the Law of the Sea (ITLOS) pending the creation of the arbitral tribunal. The ITLOS was also established by Part XV of UNCLOS. Click here for the link to the Arbitral Tribunal's Award on Jurisdiction and Admissibility for the Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) in pdf format
UN Agrees to Establish War Crimes Tribunal in Sierra Leone
Multinationals Agree to Non-Binding "Global Compact" on Environmental and Labor Rights
On July 26 the executives of approximately 50 multinational corporations and about a dozen non-governmental organizations agreed in a pact signed at the United Nations, termed the "Global Compact," to help protect the global environment and improve labor conditions. The focus of the agreement is especially in countries where the national laws on these matters are weak or non-existent. Among the participants were such large corporations as Bayer, Dupont, Ericsson, DaimlerChrysler, Nike, and Royal Dutch Shell. Among the NGO's participating were Amnesty International and the World Wildlife Fund. The nine principles in the Global Compact agreement, put forth by UN Secretary General Kofi Annan, are loosely worded and are drawn from the Universal Declaration of Human Rights of 1948 and the documents of the 1992 Earth Summit in Rio de Janeiro. While the UN is unable to insist on strict compliance and cannot enforce the provisions, some observers hope that such voluntary standards may lead to binding international norms in future years. Such voluntary agreements on international standards, albeit weakly defined, may constitute "Soft law" or serve as the basis of future treaties on such standards in the future. This agreement highlights the difficulty of establishing jurisdiction or liability over the activities of many multinationals and their subsidiaries. Their states of incorporation may have difficulty finding jurisdiction against foreign subsidiaries. Furthermore, the principal place of business of that subsidiary may be in the developing world and a developing state may be unable to effectively pursue an enforcement action. Click here for the link to the "Global Compact" Page on the UN website
Yugoslav War Crimes Tribunal Upholds Rape as a War Crime
On July 21 the appellate chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) upheld the conviction of Anto Furundzija for war crimes. Furundzija was a Bosnian Croat commander who watched a subordinate rape and torture a female prisoner at knife-point in the Bosnian war of 1992-1995. The action of the five-judge appellate chamber clearly signals the acceptance of rape and sexual assault as a war crime, an act of torture in particular. Until the Balkan conflicts of the 1990's rape and sexual assault were less likely to have been formally classified as war crimes. Click here for the link to ICTY information and documents on the UN website
Canada Ratifies Statute of the International Criminal Court
In early July, Canada formerly ratified the Statute of the I.C.C. which was drafted in Rome in July of 1998. The I.C.C. will be the first permanent international tribunal to address war crimes, genocide and crimes against humanity. In the past such international crimes have been addressed either in national courts or in ad hoc tribunals such as Nuremberg, Former Yugoslavia and Rwanda. Canada also announced they were also the first state to conform their national laws with the new tribunal. The Canadian ratification further isolates the United States for its notable rejection of the court. The stated U.S. fear of the tribunal is that it would expose U.S. military personnel abroad, many of whom are serving in multilateral peacekeeping operations, to unfair prosecutions before the court. Canada's Foreign Minister Lloyd Axelworthy expressed satisfaction that the Canadian action had come after a long public debate on Canadian participation. He also expressed hope that the United States would be more flexible in its position toward the Court. Click here for the link to ICC information and documents on the UN website.
Keith Highet Dies at Age 67: An InternationalLawHelp Tribute to a Giant of Our Profession
It is with great sadness that we mark the death of Keith Highet. Professor Highet died on Wednesday, July 12 at his home in Washington, DC after a battle with esophageal cancer. Professor Highet will always be remembered for the quality of his scholarship and his substantial contribution to the jurisprudence of the International Court of Justice. He was personally involved with the litigation of approximately 15 cases before the Court, including the South-West Africa case and the Peru-Ecuador territorial dispute. His contributions earned him well-deserved recognition as one of the most distinguished international legal scholars of the 20th Century. While his voluminous writings addressed virtually every aspect of international law, he will be particularly remembered for his contributions in the area of international litigation and dispute settlement. At the time of his death he was serving as counsel to Indonesia and Cameroon in cases pending before the ICJ. At different times in his career he served as a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University, the Paul H. Nitze School of Advanced International Studies at the Johns Hopkins University, the University of Paris and the George Washington University Law School. Professor Highet was born in Oxford, England in 1933. He earned a bachelor's degree from Harvard University in 1954 and a law degree from Harvard Law School in 1960 after completing a Fulbright Fellowship at Oxford University. SPONSOR'S NOTE: Keith Highet was my professor of international litigation in my graduate program in international law at the George Washington University Law School (1995). I remained in contact with him since that time. His scholarly manner, keen sense of humor, incisive intellect and innate sense of fairness helped shape not only my own professional development but generations of students of international law. I will miss him personally for his kindness and willingness to help in any way he could. In addition, I, along with the rest of the profession, will miss his many fine contributions to the field of international law. Hopefully, his legacy of scholarship and professionalism will be with us for a long time to come. Howard Schiffman, July 2000.
Jews Convicted in Iranian Espionage Trial
On July 1, 2000 10 of 13 Iranian Jews on trial for espionage were convicted in the Revolutionary Court in Shiraz of spying for Israel. The charges involved being members of an illegal group, recruiting others to join in and "cooperating" with Israel, Iran's enemy. They were immediately sentenced to prison terms of 4 to 13 years. Two Muslims were also convicted of aiding the alleged spy ring and were sentenced to 2 to 4 years. The trial has drawn world attention and criticism and has focused a spotlight on Iranian human rights violations. President Clinton was quick to condemn the verdict as were other world leaders. Iran's human rights record is widely considered to be one of the worst in the world and the manner in which this trial was conducted will likely invite further scrutiny. In particular, 8 of the defendants were said to have "confessed in court" during the trial. In 2 cases defendants were immediately paraded before television cameras to repeat their confessions for broadcast in the media, implying a propaganda aspect of the proceedings. Furthermore, it was reported that the confessions of the defendants were obtained after they were denied access to lawyers for 16 months. Western officials have considered this case a test of Iran's much heralded reforms of recent years; this case is likely to negatively impact that perception. Iranian officials insisted the proceeding were fair and denounced the international attention it received as interference with its internal affairs. In the last 55 years, however, since the development of modern human rights law, the treatment of a state's own nationals, even within its own borders, is a matter of international concern.
NATO War Crimes?
On June 7, 2000 Amnesty International issued a report condemning NATO for violating the rules of warfare during its campaign in the former Yugoslavia in the Spring of 1999. Amnesty expressed particular concern over the loss of civilian lives which it deemed as unnecessary. The Amnesty report specifically referred to the attack on the Belgrade headquarters of Radio Television Serbia on April 23, 1999. Almost all of the sixteen people who died in the attack were civilian employees of the radio station. Amnesty accused NATO of failing to take necessary precautions to limit civilian casualties. NATO defended the bombing as a legitimate military target claiming the radio station was part of President Slobodan Milosevic's "propaganda machine." The International Criminal Tribunal for the former Yugoslavia (ICTY) investigated the matter and found no basis for charging NATO with war crimes.
Aboriginal Whale Hunt Halted
On June 9, 2000 the U.S. Court of the Appeals for the Ninth Circuit overturned the lower court ruling that allowed members of the Makah Tribe in the State of Washington to hunt gray whales. The court ruled the U.S. government improperly authorized the hunt. The court's ruling indicates the federal government did not conduct an adequate inquiry into the environmental impact of the Makah hunt. The case was returned to the district court for further proceedings. The question of aboriginal whaling, or whaling by native peoples, has given rise to an emotional debate between environmental groups and advocates of native peoples' rights. The environmentalists argue that native whaling, like commercial whaling, no longer has a place in the modern era. The advocates for native tribes argue that limited whaling by peoples who traditionally carried out the practice should be allowed for the sake of cultural preservation. The issue is truly international in that the 40 member International Whaling Commission (IWC) approved the Makah hunt at the request of the United States. Additionally, there is some concern among anti-whaling advocates that traditional whaling states like Japan and Norway will attempt to use the issue of aboriginal whaling as a stepping-stone to resume large-scale commercial whaling.
New UN Women's Conference Re-Affirms Beijing
Delegations from 180 countries and representatives of about 1200 NGO's participated in a special session of the UN General Assembly from June 5-9 to discuss and evaluate the progress of woman in the five (5) years since the Fourth World Conference on Women took place in Beijing. The new conference, entitled "Women 2000: Gender, Equality, Development and Peace for the 21st Century" produced a final declaration that re-affirmed, and in some cases exceeded, the principles recognized at Beijing. Specifically, the final declaration contained strong language on the trafficking of women and girls as sex slaves or other servitude and the punishment of domestic violence. While the document produced by the conference is not a treaty it might be regarded as "soft law" or perhaps the precursor to customary international law. In time, it might serve as the basis of a treaty. The declaration raises the issue on the role of cultural values in international law, human rights law, in particular. While some women's group regretted the failure to agree on a more substantial declaration, other parties, namely Islamic countries and the Catholic Church were concerned with the statements agreed to. The status of women is something that varies greatly from culture to culture and Islamic counties have long insisted that such discussions are a Western attempt to undermine traditional Islamic society. Click here to review the unedited final outcome document. (Via link to UN Website; requires Adobe Acrobat Reader)
War Crimes Court for Sierra Leone?
In light of recent atrocities, the abduction of 500 UN Peacekeepers in particular, the African nation of Sierra Leone has requested the U.N. Security Council to set up a war crimes tribunal to try rebel leaders. Sierra Leone was especially concerned with the actions of one rebel faction, the Revolutionary United Front of Foday Sankoh which violated an agreement with the government last May by engaging in violence. The request by Sierra Leone which was drafted with the assistance of Great Britain, was timed to coincide with three (3) Security Council resolutions on Sierra Leona which will be debated in the near future. The type of tribunal suggested by the request would be something of a hybrid national-international tribunal that will give national prosecutors substantial powers in the proceedings. The nature of this tribunal would be similar to one now being organized for the crimes of the Khmer Rouge in Cambodia. The issue if international criminal tribunals has received considerable attention in recent years with the ad hoc tribunals of the former Yugoslavia and Rwanda and the ongoing development of the International Criminal Court. One of the chief reason for Sierra Leone's request is that their national criminal laws do not address some important crimes of an international character such as crimes against humanity and crimes against peacekeepers.